Who Did President Trump 212(f) today? | UPDATE: DHS Statement on Compliance with Recent Court Order | 9th Cir. Court Denies Stay, Upholds Travel Ban Suspension
DHS Statement on Compliance with Recent Court Order
On February 4, 2017 the U.S. Department of Homeland Security issued a press release confirming that the agency has suspended all action regarding the Enforcement of President Trump's Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States," ("Executive Order"), in accordance with the District Court's order enjoining and restraining enforcement of the Executive Order:
Release Date:February 4, 2017
For Immediate Release
Office of the Press Secretary
WASHINGTON - In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States."
This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.
DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.
At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the president's Executive Order, which is lawful and appropriate. The order is intended to protect the homeland and the American people, and the president has no higher duty and responsibility than to do so.
The 9th Circuit Upholds Travel Ban Suspension
Washington, et al v. Trump: Yesterday, the 9th Circuit Court of Appeals issued a decision in President Trump's appeal of the District Court's decision to suspend the travel ban until the Court can have a full a hearing to decide if President Trump's Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States," is constitutional. All 3 Appellate Judges sided with the States.
In so deciding, the 9th Circuit found that at this early stage in the litigation, Trump is unlikely to succeed on the merits of the claim, meaning that the Executive Order is unlikely to be found constitutional. In contrast to the short District Court's 6 page decision, the 9th Circuit issued a 23 page decision that addressed all of the issues brought up in Trump's appeal.
Of note was the 9th Circuit's clear admonition of Trump's critique of the judicial branch:
The 9th Circuit was not happy with Trump's contention that his actions as President are unreviewable by the Courts, citing to numerous precedential case law where the courts have declared acts of Congress and of the President to be unconstitutional.
The 9th Circuit also was not persuaded with Trump's contention that his access to classified national security information precluded the courts from second-guessing him on these matters. The Court responded that it has been called upon many times in the past to review classified information to make a decision and it has no problem keeping that information secret.
As for the merits of the claim, the Court touched on the Establishment Clause briefly, only stating that in light of the "numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban," the States raise some serious constitutional concerns including violations of the Establishment and the Equal Protection Clauses. When concerns of these nature are made, the courts can certainly look beyond the face of the challenged law to the see if the purpose of the law is discriminatory.
The courts are not saying that the States will succeed on these claims, merely that the States have passed the first procedural hurdle, and thus the courts will consider Trump's intent and his past statements when deciding if his Executive Order is essentially a "Muslim Ban" despite the Order itself not using those words.
What is Next in the Litigation?
Trump is likely to appeal the denial of the stay to the U.S. Supreme Court. We should find out within the next few days if that is going to happen. If no appeal is taken, the case goes back to the District Court who will continue with the underlying case to decide if Trump's Executive Order is unconstitutional.
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